MANMOHAN CHOWDHURY Vs. TURNER, MORRISON AND CO

JUDGEMENT

(1.) This is an appeal by the plaintiff against the judgment and decree of the Subordinate Judge, First Court, Chittagong, dated 14 February 1927, dismissing his suit in ejectment against the defendants. The plaintiff alleged that touzi No. 61 of the Chittagong Collectorato was purchased by the executor of the will of his father on behalf of his estate on 19 May 1913. The name of the executor was Jogendra Lal Choudhuri who is now dead. The plaintiff claimed that he was entitled to khas possession of the plots of land mentioned in the plaint by ejectment of the defendants under the provisions of Section 37, Revenue Sale Law as these did not fall within the exceptions mentioned under that section. The lands in suit were comprised in several dags of the Record-of-Rights the numbers of which are given in the plaint. The total area of these dags, according to the Record-of-Rights. would be 5.08 kanis. The estate No. 61 at one time belonged to two persons Paresh Mukherjee and Basanta Banerjee in equal shares. A seven and half annas out of Paresh's share was purchased by Jogendra Choudhury in his own name sometime prior to the year 1907 as it appears that in the land acquisition proceeding of February 1907 (Ex. M) the name of Jogendra Choudhuri appears as one of the owners of the touzi. The remaining half anna out of Paresh's eight annas share was purchased by one Rajani Karan.

(2.) The eight annas share of Basanta was purchased by one Ruhidas in 1911. Jogendra sold his seven and half annas share to one Sarat Pal in 1912 and Rajani sold the half anna share which he had purchased originally belonging to Paresh Mukherjee to one Paresh Nath Choudhuri. So before the revenue sale the recorded proprietors were Sarat Pal, Paresh Nath Choudhuri and Ruhidas; The plaintiff's father Aparna Choudhuri died about April 1912, when the plaintiff was only nine or ten years old. The present suit was brought in April 1923. The defence of the defendant company was mainly that the plaintiff's father Aparna himself was the owner of the property before the revenue sale and the persons who were the ostensible recorded owners were the benamidars of Aparna. Therefore, on the basis of the alleged revenue sale on 19 May 1913, the plaintiff is on no account entitled to claim ejectment against the defendants. The further plea was that the defendants were holding the lands under a tenancy which was created from before the permanent settlement and it-fell within one of the exceptions under Section 37, Revenue Sale Law. In para. 6, of the written statement it was stated that the defendant's tenancies were held under different persons who hold directly under the proprietor and their tenures are also of a similar nature and the suit is not, therefore, maintainable: which means that those tenures wore also permanent and were in existence from the time of the permanent settlement.

(3.) On the pleadings several issues were raised in the Court below. No attempt was made to establish that the tenancy of the defendants or the tenure under which the defendants claim to hold the lands was permanent or was held from, the time of the permanent settlement. The learned Subordinate Judge has stated the questions for decision in the case on the pleadings which may be shortly recapitulated thus: (1) Whether the plaintiff's father Aparna was himself the proprietor of the estate Taraf Asad Mosad Khan before the revenue sale of 1,913 and whether the recorded proprietors before the revenue sale were his benamidars as alleged by the defendants company; (2) Whether, as alleged by the-defendant, any deliberate default was made on the part o? the previous proprietors acting in concert with the intending purchaser with a view to annul all incumbrances so as to deprive the auction purchaser of the rights and privileges of a purchaser at a revenue sale; (3) Whether the defendants holdings are comprised within a taluk or tenure which must be annulled before the defendant can be called upon to vacate the lands; (4) Whether the land8 in suit are parts of holdings not comprising all the lands covered by the defendants leases and if so, whether the suit is maintainable; (5) Whether the defendant or his predecessors-in-interest are raiyats having a right of occupancy at fixed rent; and (6) Whether there are manufactories or other permanent buildings and tanks on the lands in suit. The Subordinate Judge has decided the first question in favour of the plaintiff. He has held that it has not been substantiated that the plaintiff's father Aparna was the actual proprietor of the estate before the revenue sale. He has also held that it has not been established that the recorded proprietor were his benamidars. The Subordinate Judge has also found that there was no deliberate default made by the previous proprietors acting in concert with the auction purchaser. The second point has thus been decided in favour of the plaintiff.